Citation Nr: 0210427
Decision Date: 08/23/02 Archive Date: 08/29/02
DOCKET NO. 96-51 116 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for arthritis of the
shoulders, to include as secondary to the service connected
shell fragment wounds.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. L. Wallin, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1968 to
December 1969.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a December 1995 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan, which denied the benefit sought on
appeal.
The matter was previously before the Board in October 1998
and October 2000. Both times the matter was remanded for
further development and adjudication. Having been completed,
the matter is now ready for appellate disposition.
The Board notes that the veteran's claims for entitlement to
service connection for arthritis of the knees and back, were
granted in a February 2002 rating decision. Therefore, the
matters are no longer on appeal.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
resolution of the issue on appeal has been obtained.
2. Service connection is currently in effect for shell
fragment wound scars to the right wrist, left arm, right hip,
abdominal wall, left thigh and leg, right cheek, and left
upper chest wall.
3. The veteran's arthritis of the shoulders is related to
his service-connected shell fragment wounds.
CONCLUSION OF LAW
Arthritis of the shoulders is proximately due to or the
result of the service connected shell fragment wounds.
38 U.S.C. §§ 1131, 1154, 5103, 5103A, 5107 (2002); 38 C.F.R.
§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2002); 66 Fed.
Reg. 45, 630-32 (Aug. 29, 2001)(to be codified as amended at
38 C.F.R. §§ 3.102, 3.159)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that recent case authority raises
some doubt as to whether the duty to notify and assist
provisions of the recently enacted Veteran's Claims
Assistance Act of 2000 (VCAA) apply to the appellant's claim
on appeal. More specifically, in the case of Dyment v.
Principi, 287 F.3d 1377, 1385 (Fed. Cir. April 24, 2002), the
Federal Circuit held that the duty to notify and assist
provisions of the VCAA was not meant to be applied
retroactively. However, the Board notes that even assuming
the applicability of the VCAA, the case has already been
sufficiently developed and adjudicated under the VCAA. The
veteran has been placed on notice of the law and regulations
pertinent to his claim, most recently in a February 2002
Supplemental Statement of the Case (SSOC). In addition, he
has been informed of the evidence necessary to substantiate
his claim, to include letters dated in January 1999, October
2000, and January 2001. See Quartuccio v. Principi, No. 01-
997 (U.S. Vet. App. June 19, 2002). Further notice of this
information would be both redundant and unnecessary.
The veteran contends that his arthritis of the shoulders is
due to shell fragment wounds sustained in service. Service
connection for VA compensation purposes will be granted for a
disability resulting from disease or personal injury incurred
in line of duty or for aggravation of a preexisting injury in
the active military, naval, or air service, during a period
of war. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).
When aggravation of a veteran's non-service connected
disability is proximately due to or the result of a service-
connected disease or injury, it too shall be service
connected. 38 C.F.R. § 3.310; see Allen v. Brown, 7 Vet. App.
439, 446 (1995). Establishing service connection on a
secondary basis requires evidence sufficient to show: (1)
that a current disability exits, and (2) that the current
disability was either (a) caused by or (b) aggravated by a
service-connected disability. Id. When service connection
is thus established for a secondary condition, the secondary
condition shall be considered a part of the original
condition. 38 C.F.R. § 3.310(a); Allen at 446.
The Board has thoroughly reviewed all the evidence of record
and after careful consideration of all procurable and
assembled data, finds that based on the evidence below, there
exists an approximate balance of positive and negative
evidence, which does not satisfactorily prove or disprove the
veteran's claim. 38 C.F.R. § 3.102; cf 66 Fed. Reg. 45, 620
(Aug. 29, 2001)(to be codified as amended at 38 C.F.R.
§ 3.102).
An August 2000 opinion from DR. R.J.F., opines that the
veteran's arthritis of the right shoulder is most likely due
to shrapnel adjacent to the shoulder. A July 2000 VA
outpatient treatment record, indicates that given the
presence of foreign bodies, metallic in nature, in the
shoulder area, one may conclude that this veteran's pain
relates to chronic tissue destruction with neurogenic
component of peptide secretions in the area. The veteran was
diagnosed with osteoarthritis of the left shoulder and
degenerative osteoarthritis of the lumbar area, traumatic in
origin.
Upon VA examination in August 2001 VA, the examiner opined
that pathology seen in the shoulders, was not really
glenohumeral arthritis, but was AC joint arthritis that is
age related and not related to his shell fragment wounds.
Though the November 2001 VA examination found that bilateral
chronic rotator cuff tendonitis was not a service-connected
condition because the veteran was never struck by fragments
in that area, x-rays taken upon VA examination in August 2001
revealed the presence of shrapnel in the upper right chest.
It should also be noted that in a September 1995 radiographic
report, foreign bodies were noted in the soft tissues on the
right and overlying the left scapula. Further a February
1999 letter from M.E.D., D.O., indicated that X-ray evidence
revealed shrapnel in the right shoulder with thickening of
the acromioclavicular (AC) joint and spurring of the acromion
consistent with impingement.
In the instant case, the veteran has been afforded a
multitude of VA examinations.
While the Board has considered all the examination reports of
record, most specifically VA examination reports dated in
March 1999 and December 1999, they have been found not to be
probative, as they did not find evidence of arthritis. The
evidence of record clearly establishes the presence of
osteoarthritis in the shoulders.
Given the conflicting opinions of record, and in light of
the veteran's credible complaints of pain, continued
treatment of his shoulders, and x-ray evidence of
osteoarthritis of the shoulders, the evidence is in relative
equipoise, and the veteran's claim must be granted.
ORDER
Entitlement to service connection for arthritis of the
shoulders, as secondary to shell fragment wounds, is granted.
L. M. Barnard
Acting Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.